Delhi District Court
State vs Guddu Khan on 31 January, 2026
DLSH010071612020 Page 1 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR. FIR No. 121/2020 (Crime Branch) U/s 21(c) NDPS Act IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA, KARKARDOOMA COURTS, DELHI SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR. FIR No. 121/2020 (Crime Branch) U/s 21(c) NDPS Act In the matter of :- State ...(through Ld. Addl. PP) Vs. (1) Guddu Khan, S/o Md. Sharafat Ali, R/o Mandoli Road, near Sewa Dham Mandir Wali Gali, Rahul Garden Chowk, U.P. Permanent Address :- H.No. 338, Block-E-2, Nand Nagri, Delhi. (2) Afaaq Khan, S/o Md. Sharafat Ali, R/o Mandoli Road, near Sewa Dham Mandir Wali Gali, Rahul Garden Chowk, U.P. Permanent Address :- H.No. 338, Block-E-2, Nand Nagri, Delhi. ....accused persons (Sh. Karan Verma, Advocate for accused persons) DLSH010071612020 Page 2 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR. FIR No. 121/2020 (Crime Branch) U/s 21(c) NDPS Act Date of institution : 17.11.2020 Date when Judgment reserved : 12.01.2026 Date of Judgment : 31.01.2026 Final Decision : Acquitted JUDGMENT
CASE OF THE PROSECUTION
1. Brief facts of the present case as per charge-sheet are that a secret information was received at P.S. Crime Branch, Delhi, on 20.08.2020 regarding a person named Guddu Khan, resident of Nand Nagri, Delhi, who deals in illegal heroin and would come near SDM Office, Nand Nagri to deliver the same and if a raid is conducted, he can be apprehended. Accordingly, a trap was laid down on the intervening night of 20-21.08.2020 near the area opposite Bus Stand No. 212 in Nand Nagri. At approximately 12:20 am, the police witnessed accused Guddu Khan in the act of transferring a black polythene from right side pocket of his wearing pant to his accomplice, accused Afaaq Khan. Both the accused persons were apprehended. ACP was requested to come at the spot for personal search of accused persons. Notice U/s 50 NDPS Act was served upon the accused persons. At about 1:40 am ACP Sh. Udaibir Singh came at the spot, made inquiry from the accused persons. In the presence of ACP, black polythene was taken from the hands of accused Afaaq Khan which was given to him by accused Guddu Khan and on checking the same, it was found containing a transparent polythene tied with rubber band containing 300 grams of heroin DLSH010071612020 Page 3 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act (brown (matmela) colour substance). On the basis of which, the present FIR was registered U/s 21 NDPS Act. The accused persons were arrested. The recovered contraband was seized, samples were taken and pullandas were prepared. The samples were sealed, FSL form was filled at the spot. The sampling of the contraband U/s 52A NDPS Act was also done before Ld. Executive Magistrate and sent to FSL. FSL report dated 23.11.2020 has been received wherein it is mentioned that the parcels are containing Diacetylmorphine, Acetaminophen, Caffeine, Dextromethorphan, Morphine, Acetylcodeine, 6-Monoacetylmorphine & Trimethoprim.
INVESTIGATION & OTHER PROCEEDINGS
2. Upon completion of investigation, on 17.11.2020 charge-sheet was filed against accused persons namely Guddu Khan and Afaaq Khan U/s 21 NDPS Act.
CHARGE
3. Vide order on charge dated 25.10.2021, charge U/s 21(c) NDPS Act were framed against accused persons namely Guddu Khan and Afaaq Khan.
PROSECUTION EVIDENCE
4. To substantiate the aforementioned charge, the prosecution presented 14 witnesses. The details of these witnesses, alongwith the documents they presented during their testimonies, are listed below in tabular form:
DLSH010071612020 Page 4 of 61 SC No. 217/2020STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020 (Crime Branch) U/s 21(c) NDPS Act PW number Brief role of Documents Description and name of witness exhibited witness PW-1 1st IO, endorsed Ex. PW-1/A & Notices U/s 50 NDPS Act addressed to Inspector secret Ex. PW-1/B accused persons. Deepak information on Ex. PW-1/C Seizure memo of contraband. Pandey CCTNS by DD No. 14A, Ex. PW-1/D Nil recovery memo of accused Guddu member of Khan. raiding party Ex. PW-1/E Rukka. who apprehended the Ex. PW-1/F Site plan. accused Ex. P-1 Remnants of heroin/ contraband recovered persons, served from the possession of accused Afaaq notice U/s 50 Khan, received after FSL examination. NDPS Act on the accused Ex. P-2 Sample 'S-2' taken out from the recovered persons, heroin/ contraband. recovered contraband, drawn samples, sealed and seized the case property, prepared nil recovery memo qua accused Guddu Khan, prepared rukka and prepared report U/s 57 NDPS Act qua recovery/ seizure of contraband etc. PW-2 HC Member of Ex. PW-2/A Arrest memos of accused persons. Nitin raiding party and Ex. PW- and one of the 2/B recovery Ex. PW-2/C Personal search memos of accused persons. witness. Seal and Ex. PW- DLSH010071612020 Page 5 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR. FIR No. 121/2020 (Crime Branch) U/s 21(c) NDPS Act after use was 2/D
handed over to Ex. PW-2/E Disclosure statements of accused persons him. and Ex. PW-
2/F
Ex. PW-2/G Original notices U/s 50 NDPS Act
and Ex. PW- addressed to accused persons.
2/H
PW-3 HC Member of
Vivek raiding party
and one of the
recovery
witness. He
handed over the
original rukka to
Duty Officer
and got
registered the
FIR, he further
handed over all
the sealed case
property, copy
of seizure memo
and FSL form
to SHO, as per
directions of SI
Deepak Pandey.
PW-4 Duty Officer Ex. PW-4/A Copy of FIR.
Retired HC (OSR)
Ram Niwas Ex. PW-4/B Endorsement on the rukka.
Ex. PW-4/C Certificate U/s 65-B of the Evidence Act.
PW-5 HC Member of
(now ASI) raiding party
Karambir and one of the
recovery
witness.
PW-6 HC He deposited Ex. PW-6/A Copy of RC No. 271/20/21.
Gaurav the sample (OSR)
parcels and Ex. PW-6/B Acknowledgment of FSL.
DLSH010071612020 Page 6 of 61
SC No. 217/2020
STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020
(Crime Branch)
U/s 21(c) NDPS Act
other documents (OSR)
at FSL Rohini,
Delhi.
PW-7 Incharge, Photo Ex. PW-7/A 28 photographs of sampling proceedings
Retired SI Section (Colly) before Ld. Executive Magistrate,
Ishwar Seemapuri, SDM Office.
Prakash Ex. PW-7/B The CD containing photographs.
Ex. PW-7/C His certificate U/s 65-B of IEA.
PW-8 HC Maalkhana
Manish Munshi. He
produced one
parcel Mark-A
sealed with the
seal of MK and
SS before Ld.
Executive
Magistrate for
purpose of
sampling,
handed over to
him by
MHC(M).
PW-9 Dr. Expert witness Ex. PW-9/A Her detailed report dated 23.11.2020.
Kavita from FSL (running into
Goyal, two pages)
Assistant
Director
(Chemistry)
PW-10 MHC(M), P.S. Ex. PW-10/A Entry in Register No.19 at serial no. 3748
Retired ASI Crime Branch (OSR) qua handing over of sealed case property
Jag Narayan alongwith carbon copy of seizure memo to
him by SHO.
Ex. PW-10/B Entry vide serial no. 3749 in Register No. (OSR) 19 qua deposition of personal search articles of accused persons in the maalkhana.
PW-11 SI 2nd IO who Mark-11A Copy of his report U/s 57 NDPS Act dated Prakash arrested accused 22.08.2020.
DLSH010071612020 Page 7 of 61 SC No. 217/2020 FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act persons, conducted personal search of accused persons wherein original notices U/s 50 NDPS Act were recovered, prepared site plan at the instance of SI Deepak Pandey, recorded disclosure statements of accused persons, submitted his report U/s 57 NDPS Act to be forwarded to ACP and moved an application for conducting proceedings U/s 52A NDPS Act before SDM, Seemapuri, sent samples to FSL, obtained photographs and CD of sampling proceedings and after obtaining FSL result, submitted supplementary charge-sheet in the Court.
PW-12 ASI Reader to ACP, Ex. PW-12/A Copy of entries of the diary register of the DLSH010071612020 Page 8 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act Satish ER-II, Crime year 2020 of ACP Office from 21.08.2020 Kumar Branch, Krishna to 24.08.2020 as per which there is no entry Nagar, Delhi of receipt of report U/s 57 NDPS Act dated 22.08.2020 sent by SI Prakash in the present case.
PW-13 SHO, P.S. Ex. PW-13/A GD No. 6A dated 21.08.2020 recorded at Inspector Crime Branch 6:00 am regarding information about (now ACP) who conducted deposition of case property, samples and Satender proceedings U/s documents in this case U/s 55 NDPS Act.
Sangwan 55 NDPS Act PW-14 ACP, SIU-II/ He reached the spot and personal search of Retired Crime Branch, the accused persons taken place in his ACP Udai Nand Nagri, presence. Bir Singh Delhi Admitted documents U/s Ex. AD-1 Proceedings U/s 52A NDPS Act conducted 330 BNSS / 294 by Sh. Atul Ramchiary, Ld. Executive Cr.P.C. Magistrate, Seemapuri, DC Office Complex, Nand Nagri, Delhi.
After examining the depositions of the witnesses mentioned in the table above, it is found that they gave evidence about the undermentioned facts for the prosecution:-
5. PW-1 Inspector Deepak Pandey deposed that on 20.08.2020 he was posted as Sub Inspector at SIU-II, Crime Branch, Nand Nagri, Delhi. On that day, at about 11:30 pm, one secret informer came to his office and informed that one person namely Guddu Khan, R/o Nand Nagri used to supply heroin in retail and wholesale in Delhi and he also informed that he (Guddu Khan) will come at around 1:00 am (night) for supplying the heroin and if raid is conducted, he can be apprehended. After, satisfaction, this witness informed about the secret information to Inspector Vinod Ahlawat at his office and also produced the said DLSH010071612020 Page 9 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.FIR No. 121/2020
(Crime Branch) U/s 21(c) NDPS Act informer before him. Inspector Vinod Ahlawat also verified the said secret information and after inquiry found satisfaction, Vinod Ahalawat informed to ACP, Nand Nagri Sh. Udaiveer Singh. Thereafter, this witness produced the secret informer before ACP Sh. Udaiveer Singh in his office. After, satisfying ACP directed this witness to take appropriate action and conducted the raid. Thereafter, this witness endorsed the said secret information on CCTNS by DD No. 14A for onward transmission of the information U/s 42 NDPS Act. Thereafter, this witness construed a raiding party consisting HC Karamvir, HC Vivek and Ct. Nitin and this witness also shared the information with them and then he left from his office with informer, IO bag, field testing kit, laptop with charger, UPS, printing-cum-photocopies machine and weighing machine and then all the raiding police officials left from his office in his private car. They all were in civil uniform. This witness was sitting at the adjacent seat of driver and HC Vivek was driving the car. HC Karamvir, Ct. Nitin and informer were sitting on the rear seat of vehicle of this witness. They left from their office at about 12:06 am vide DD No. 1A dated 21.08.2020. They took the route towards Nand Nagri Red Light and turn towards right side to the Gagan Cinema. Thereafter, they took again right side and reached SDM, Nand Nagri Office and take the U-turn. Thereafter, at about 12:20 am they reached Golchakkar, SDM Office, Nand Nagri where this witness asked 3-4 passersby to join the proceeding after disclosing the secret information, but none of them agreed and left without disclosing their names and addresses. Thereafter, this witness directed the driver of his car HC Vivek to take his position alongwith car of this witness from 100 meter towards the Tahirpur Red Light. Remaining staff and DLSH010071612020 Page 10 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act informer were accompanying this witness at nearby Bus Stand No. 212.
It is stated by him that at about 12:50 am he saw a person coming on opposite side of the road through a gali adjacent to the Bus Stand No. 212. Initially one suspect came there and after seeing said person/ suspect, informer pointed out towards him and informed that he is Guddu Khan and then informer left from there towards Tahirpur side. At that time, the said suspect was suspiciously watching here and there through thief's eye. Approximately after 5- 6 minutes, another person came there approaching towards Guddu Khan. Both of them did the conversation a little bit and suddenly at around 1:00 am Guddu Khan took a black polythene from his right pocket of pants and delivered the said black polythene to another person who has approached to him. After watching this, this witness gave a clear indication towards his team member and they raided at said place and apprehended both of them. This witness informed them about their identity and reason and source of information. Thereafter, this witness asked their names, who disclosed their names as Guddu Khan and another person who came later on as Afaaq Khan (correctly identified both of them by this witness in the Court). At about 1:10 am, this witness informed the outcome of the raid to ACP Sh. Udaiveer Singh on mobile phone and requested him to come at the spot. In the meanwhile, this witness served the notice U/s 50 NDPS Act and at that time, he informed both the said persons about the meaning of Gazetted Officer and Magistrate and also offered them to take their (raiding team) search or search of their private vehicle. Both the apprehended persons denied taking any type of search of police officials and private vehicle. This witness asked them to endorse the same on the notice U/s 50 NDPS Act.
DLSH010071612020 Page 11 of 61 SC No. 217/2020 FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act This witness served notice U/s 50 NDPS Act first to Guddu Khan and then Afaaq Khan, same are exhibited as Ex. PW-1/A and Ex. PW-1/B, respectively bearing signature of this witness at Point-A. Both the apprehended persons were asked to endorse their non willingness of checking the police official and the vehicle, but they informed this witness that they are illiterate and they cannot write, but can do the signature. At the dictation of both the accused persons, this witness noted their reply from Points X to X1 on notice U/s 50 NDPS Act. Same was attested by this witness at Point-B. It is stated by him that after arrival of ACP at around 1:40 am, searching and frisking of the apprehended persons were taken. First of all, this witness took the search of accused Afaaq, he found a black polythene wrapped up with rubber from the top. He opened the same and found a muddy colour substance inside the polythene. He tested the said substance on field testing kit, which affirmed that the recovered contraband was Heroin. Then he weighed the said contraband which was 300 gms in total. He took two samples of 10 gms each from the said contraband and kept in two transparent plastic containers and remaining contraband was kept in same polythene bag and then kept in big transparent plastic container and then all three containers were tied with doctor tape in cross and then same were marked as A, S1 and S2 and seal of MK was affixed on them. Thereafter, this witness also took out a FSL form, after filling the same, he put the seal of MK on it. Seal after use was handed over to Ct. Nitin. Then this witness prepared seizure memo of contraband Ex. PW-1/C and then he conducted the search of Guddu Khan, but no contraband was recovered from his possession. Thus, this witness prepared a nil recovery memo of DLSH010071612020 Page 12 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act accused Guddu Khan, which is Ex. PW-1/D which bears signature of this witness at Point-A. It is stated by him that ACP Udaiveer Singh directed him to conduct investigation as per law and, thereafter, he (ACP) left the spot at about 2:50 am. This witness prepared rukka. The same is Ex. PW-1/E bearing his signature at Point-A. He handed over the rukka to HC Vivek for registration of FIR alongwith other relevant documents i.e. seizure memo, FSL form. He also handed over case property i.e. Mark A, S-1 and S-2 to HC Vivek in order to hand over the case property, seizure memo and FSL form to the SHO for necessary action. HC Vivek left the spot at about 4:00 am.
It is stated by him that at about 7:00 am, SI Prakash came at the spot. He handed over the accused persons and all documents related to the case to 2nd IO SI Prakash. At about 7:30 am, HC Vivek came back at the spot alongwith copy of FIR and rukka. He handed over the same to SI Prakash. SI Prakash interrogated the accused persons. IO prepared site plan at instance of this witness and the same is Ex. PW-1/F bearing signature of this witness at Point-A. IO recorded statement of this witness U/s 161 Cr.P.C. Thereafter, this witness was relieved from investigation.
MHC(M) produced following case properties :-
1. One transparent plastic jar bearing case particulars, signature of witnesses, IO, SHO and of the accused on doctor tape bearing FSL seal. The same is opened and one transparent polythene is taken out from one black polythene. The white polythene is tied by a orange colour rubber band. The same is opened and heroin like material blackish brown colour is taken out and DLSH010071612020 Page 13 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.FIR No. 121/2020
(Crime Branch) U/s 21(c) NDPS Act the same is shown to the witness. The witness has correctly identified the same and stated that it was the same property which was recovered from accused Afaaq as mentioned in seizure memo Ex. PW-1/C. The same is Ex. P-1.
2. One plastic container bearing seal of 'MK' and 'SS'. It also bears case particulars, signatures of witnesses, IO, SHO and of the accused on doctor tape. The same is opened and heroin like material blackish brown colour is taken out and the same is shown to the witness. The witness has correctly identified the same and stated that it was the sample S-2 as mentioned in seizure memo Ex. PW-1/C. The same is Ex. P-2.
It is stated by him that the sampling proceedings U/s 52A NDPS Act has already been conducted before Ld. MM. Production of case properties is therefore dispensed with.
It is stated by him that he prepared a report U/s 57 NDPS Act qua recovery/ seizure of contraband and submitted the same for onward transmission to senior officers. The said report is not on record.
During his cross-examination on behalf of accused persons, it is stated by him that the secret informer did not tell as to whom accused Guddu Khan will supply contraband, nor he apprised how the accused will reach the spot. It is stated by him that he had not taken written authorization prior to the raid and recovery. It is stated by him that he had not recorded the secret information on a blank paper. It is stated by him that due to paucity of time, no notice was served to any other person for joining the raiding party. It is stated by him that accused did not make any call to any person from his mobile phone to reach the spot. It is stated by him that all the members of the raiding team DLSH010071612020 Page 14 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act were carrying smart mobile phones having camera. It is stated by him that he had not directed or instructed the members of the raiding team to make video recording nor did he do it himself. He failed to remember from which road or street the secret informer left the spot. It is stated by him that he did not check if there was any CCTV camera installed at SDM Office or at Gagan Cinema or at Govt. Sarvodaya Kanya Vidhyalaya. He failed to remember from which direction accused Afaaq had come from. He failed to remember whether he had personally called the ACP on his mobile number to reach the spot. It is stated by him that he could not produce the relevant call record or call number at this stage. It is stated by him that while the ACP was on his way, again said when ACP reached the spot, he (this witness) checked the contraband recovered with the help of field testing kit wherein the colour of the contraband turned 'matmela'. He failed to remember whether the ACP had interrogated the accused persons. It is stated by him that he had not informed about the nearest Magistrate or Gazetted Officer to the accused persons. It is stated by him that he had used the seal of MK, however he could not tell what MK means. It is stated by him that there was no seal issuance memo regarding the said seal of MK. It is stated by him that HC Vivek returned back at the spot in a private vehicle, however he could not remember its registration number. It is admitted by him that the seizure proceedings were neither photographed, nor videographed. It is denied by him that the accused persons were apprehended from their house around 5:00 pm to 6:00 pm and not as stated in the charge-sheet.
6. PW-2 HC Nitin deposed that on 20.08.2020 he was posted as DLSH010071612020 Page 15 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act Constable at SIU-II, Crime Branch, Nand Nagri, Delhi. On that day, at about 11:45 pm, SI Deepak Pandey constituted a raiding party after getting directions from the senior officials. The raiding party was consisting HC Vivek, HC Karamvir, this witness and SI Deepak Pandey himself. SI Deepak Pandey conveyed the members of raiding party regarding the secret information given by secret informer and the information was that one person namely Guddu Khan who was resident of Nand Nagri used to supply heroin and the said Guddu Khan would come in the area nearby SDM Office, Nand Nagri at around 1:00 am (night) for supplying the heroin. Thereafter, they the members of raiding party had left the office in the private car of SI Deepak Pandey and the car was driven by HC Vivek. SI Deepak Pandey had kept IO Kit, field testing kit, electronic weighing machine, laptop printer, UPS charger. The secret informer also accompanied them in the said car. They reached some distance ahead to SDM Office, Gol Chakkar, Nand Nagri where the car was stopped and SI Deepak Pandey asked 3-4 passersby to join the proceedings after disclosing the secret information, but none of them agreed and left without disclosing their names and addresses. No notice could be served to those public persons due to paucity of time. At about 12:20 am, they reached near SDM Office, Gol Chakkar, Nand Nagri where SI Deepak Pandey asked 3-4 passersby to join the proceeding after disclosing the secret information, but none of them agreed and left without disclosing their names and addresses. No notice could be served to those public persons due to paucity of time. Thereafter, they reached at Bus Stop No. 212, Nand Nagri at the instance of secret informer. Members of raiding party had de- boarded from the car at the direction of SI Deepak Pandey and IO SI Deepak DLSH010071612020 Page 16 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act Pandey had directed the driver of the car namely HC Vivek to take the car in the side of Tahirpur Road for precautions. They had taken their positions around the Bus Stop No. 212 at the direction of SI Deepak Pandey. At about 12:50 am, one person came from the gali nearby to Bus Stop No. 212 and had crossed the road and took his position on the road towards GTB Hospital. After seeing the said person, secret informer pointed out towards him and informed that he is Guddu Khan and then secret informer left from there. At about 12:55 am, another person came near Guddu Khan and they started talking with each other. When Guddu Khan put his hand in his right pocket, at the direction of IO SI Deepak Pandey, the members of raiding party had proceeded towards Guddu Khan and his associate. In the meantime Guddu Khan had taken out one small packet from his right pocket and handed over the same to his associate. In the meantime at about 1:00 am they all had apprehended both the persons. IO SI Deepak Pandey introduced himself and members of raiding party to those persons and interrogated them on which they disclosed their names as Guddu Khan and another person who came later on as Afaaq Khan (this witness correctly identified both the accused persons in the Court).
It is stated by him that at about 1:10 am, IO SI Deepak Pandey informed to ACP concerned regarding apprehension of both accused persons and outcome of the secret information and requested him to come at the spot. In the meanwhile, IO SI Deepak Pandey conveyed the said secret information to both the persons and also told that it was informed to him that they were having illicit contraband and that is why he had to take their search. IO SI Deepak Pandey informed both of them about their legal rights and if they wish they can DLSH010071612020 Page 17 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act take the search of members of raiding party as well as vehicle. If they wish they can be searched in presence of Gazetted Officer and Magistrate. SI Deepak Pandey had also told them the meaning of Gazetted Officer and Magistrate. Thereafter, IO SI Deepak Pandey prepared two sets of notice U/s 50 NDPS Act with the help of laptop and printer. Then he served notice U/s 50 NDPS Act to each of the accused persons, same are already exhibited as Ex. PW-1/A and Ex. PW-1/B, respectively. Both the persons denied on the notice of Section 50 NDPS Act that they did not want to be searched in the presence of Gazetted Officer or the Magistrate. At the dictation of both the accused persons, SI Deepak Pandey noted their reply from Points X to X1 on notice U/s 50 NDPS Act. Same was attested by SI Deepak Pandey at Points-B. As the accused persons were illiterate, they cannot write, but can do the signature. They had signed on their denial in the notice U/s 50 NDPS Act.
It is stated by him that after arrival of ACP at around 1:40 am, he had introduced himself to both accused persons and directed SI Deepak Pandey to take their search. First of all SI Deepak Pandey took the search of accused Afaaq, he found a black polythene wrapped up with rubber from the top. SI Deepak Pandey opened the same, he found a transparent polythene having some substance and the mouth of said polythene was tied with the rubber. After opening the said transparent polythene SI Deepak Pandey found one muddy colour substance kept in it. SI Deepak Pandey tested the said substance on field testing kit, which affirmed that the recovered contraband was heroin. Then SI Deepak Pandey weighed the said contraband which was 300 gms in total. SI Deepak Pandey took two sample of 10 gms each from the said contraband and DLSH010071612020 Page 18 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act kept in two transparent plastic containers and remaining contraband was kept in same polythene bag and then kept in big transparent plastic container and then all three containers were tied with doctor tape in cross and then same were marked as A, sample polythenes as S1 and S2 and seal of MK was affixed on them. Thereafter, SI Deepak Pandey also took out a FSL form after filling the same and put the seal of MK on it. Seal after use was handed over to this witness. Then SI Deepak Pandey prepared seizure memo of contraband which is already Ex. PW-1/C bears signature of this witness at Point-B and then SI Deepak Pandey conducted the search of Guddu Khan, but no contraband was recovered from his possession. Thus, SI Deepak Pandey prepared a nil recovery memo of accused Guddu Khan, which is already Ex. PW-1/D bears signature of this witness at Point-B. Thereafter, ACP had left the spot at about 2:50 am. Thereafter, SI Deepak Pandey prepared rukka/ tehrir and handed over to HC Vivek. SI Deepak Pandey also handed over copy of seizure memo of the case property, pullandas having Mark S1, S2, nil recovery memo and FSL form with the direction to hand over the rukka to the DO and the remaining things to SHO, Crime Branch, Pushp Vihar.
It is stated by him that at about 7:00 am, SI Prakash came at the spot. At about 7:30 am, HC Vivek also came back to the spot and handed over copy of FIR and original rukka to SI Prakash. At the instance of SI Deepak, SI Prakash prepared the site plan.
It is stated by him that SI Prakash arrested the accused Guddu Khan and Afaaq vide memos Ex. PW-2/A and Ex. PW-2/B. They were personally searched vide personal search memos Ex. PW-2/C and Ex. PW-2/D. From the DLSH010071612020 Page 19 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act personal search of accused Guddu Khan, one original notice U/s 50 NDPS Act, copy of nil recovery memo and Rs. 250/- were recovered. From the personal search of accused Afaaq, one original notice U/s 50 NDPS Act, copy of seizure memo and Rs. 540/- were recovered. At the instance of accused Guddu Khan they tried to search the supplier of contraband Raju in the area of Nand Nagri and Sunder Nagri, but he could not be found. Thereafter, both the accused persons were brought back to their office. SI Prakash recorded disclosure statements of accused persons vide memos Ex. PW-2/E and Ex. PW-2/F. They again went alongwith accused persons to the areas of Nand Nagri, Sunder Nagri and GTB Nagar for search of Raju, but he could not be found. Both the accused persons were taken to Mandoli Jail where SI Prakash obtained their three days PC remand from Ld. Duty MM. Both the accused persons were brought back and were lodged in the lock-up of P.S. Nand Nagri. Statement of this witness was recorded by SI Prakash in their office between 10:30 pm to 11:30 pm. MHC(M) produced the original notices U/s 50 NDPS Act in the names of accused persons Afaaq and Guddu Khan. Witness identifies the notices as the original notices handed over to the accused persons and which were recovered from their respective personal search. The notices U/s 50 NDPS Act are taken on record. The notice U/s 50 NDPS Act issued to accused Afaaq is Ex. PW-2/G. The notice U/s 50 NDPS Act issued to accused Guddu Khan is Ex. PW-2/H. It has been observed that the case properties have already opened and exhibited in the testimony of PW-1 Inspector Deepak Pandey. Ld. Defence Counsel does not dispute the identity of the case property. Hence, the DLSH010071612020 Page 20 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act production of the case property is dispensed with.
During his cross-examination on behalf of accused persons, it is stated by him that they left their office vide DD No. 01. It is admitted by him that in the arrest memos of the accused persons, grounds of arrest are not mentioned. It is stated by him that accused Afaaq came from the side of SDM Office when he met accused Guddu. It is stated by him that accused Guddu told that he is resident of Nand Nagri and accused Afaaq told that he is resident of Kashinagar or Kashipur, U.P. It is stated by him that at the time of their apprehension, they did not disclose that they are real brothers. It is stated by him that in the night hours, it takes about 10-12 minutes in reaching the spot from their office. It is stated by him that SI Deepak Pandey did not smell or taste the recovered contraband.
7. PW-3 HC Vivek deposed that on 20.08.2020, he was posted as Head Constable at SIU-II, Crime Branch, Nand Nagri, Delhi. On that day, at about 11:30 pm, one secret informer came to their office and met SI Deepak Pandey and told that one person namely Guddu Khan who used to supply heroin will come near roundabout of SDM Office, Nand Nagri for supplying the heroin at about 1:00 am and can be apprehended if raided. SI Deepak Pandey after satisfying with the information produced the secret informer before Inspector Vinod who made inquiries from the secret informer and produced him before ACP Crime in their office.
This witness deposed on the similar lines as deposed by PW-1 Inspector Deepak Pandey and PW-2 HC Nitin on all other aspects.
DLSH010071612020 Page 21 of 61 SC No. 217/2020 FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act It is further stated by him that they the members of raiding party had left the office at about 12:10 am in the private car of SI Deepak Pandey.
It is stated by him that after the raiding team members got down from the car near SDM Office roundabout, Nand Nagri, he parked the car at some distance on Tahirpur road at about 12:20 am and waited there. At about 1:00 am he noticed that the raiding team members have apprehended two persons. SI Deepak Pandey called this witness there alongwith the car and this witness also joined the investigation. It is stated by him that SI Deepak Pandey interrogated both the said persons on which they disclosed their names as Guddu Khan and another person who came later on as Afaaq Khan (this witness correctly identified both the accused persons in the Court).
It is stated by him that SI Deepak Pandey weighed the recovered contraband alongwith transparent polythene which was 300 gms in total. SI Deepak Pandey took two samples of 10 gms each from the said contraband and kept in a two transparent plastic container and remaining contraband was kept in same polythene bag and then kept in big transparent plastic container and then all three containers were tied with doctor tape in cross and then same were marked, sample polythenes as S1 and S2 and seal of MK was affixed on them. The plastic container containing the remaining 280 grams contraband was marked as Mark A and the same was sealed with the seal of MK. SI Deepak Pandey also signed the containers. Search of accused Guddu was taken, but nothing was recovered. Thereafter, ACP left the spot at about 2:50 am after giving necessary directions to SI Deepak Pandey. SI Deepak Pandey prepared seizure memo of contraband from laptop and printer and also handed over one DLSH010071612020 Page 22 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act copy of the same to accused Afaaq. SI Deepak Pandey prepared nil recovery memo of accused Guddu and handed over one copy of the same to him. Thereafter, SI Deepak Pandey also took out a FSL form after filling the same and put the seal of MK on it.
Thereafter, SI Deepak Pandey prepared rukka/ tehrir and handed over to this witness. SI Deepak Pandey also handed over copy of seizure memo of the case property, pullandas having Mark S1, S2 and nil recovery memo and FSL Form to this witness with the direction to hand over the rukka to the DO and the remaining things to SHO, Crime Branch, Pushp Vihar.
It is stated by him that he went to the office of SHO, Crime Branch and handed over the original rukka to the Duty Officer at about 5:00 am. At about 5:15 am, this witness handed over all the three sealed containers Mark A, S1 and S2, copy of seizure memo and FSL form to the SHO. After registration of the case, this witness obtained copy of FIR and original rukka from the Duty Officer and came back at the spot at about 7:30 am where apart from raiding team members SI Prakash was also present. This witness handed over copy of FIR and original rukka to SI Prakash. At the instance of SI Deepak, SI Prakash prepared the site plan.
It is stated by him that his statement was recorded by SI Prakash in their office between 8:30 pm to 9:30 pm. During his cross-examination on behalf of accused persons, it is stated by him that in case if there is no heavy traffic, they can reach the place of apprehension from their office within 10 minutes. It is stated by him that he was waiting in the car alone before the apprehension of accused persons.
DLSH010071612020 Page 23 of 61 SC No. 217/2020 FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act
8. PW-4 retired HC Ram Niwas deposed that on 20.08.2020, he was posted at P.S. Crime Branch, Pushp Vihar as HC and was working as Duty Officer from 8:00 pm of 20.08.2020 to 8:00 am of 21.08.2020. At about 5:09 am HC Vivek brought the rukka sent by SI Deepak Pandey, contents of which were dictated by this witness to the Computer Operator and the FIR was registered vide FIR No. 121/2020 and computerized copy of FIR was obtained. This witness had handed over the copy of FIR and the original rukka to HC Vivek to hand over the same to SI Prakash as investigation was marked to him. The copy of FIR is Ex. PW-4/A (OSR) bearing signature of this witness at Point-A. This witness had made endorsement on the rukka and the same is Ex. PW-4/B bearing his signature at Point-B. In this regard, the certificate U/s 65B of the Evidence Act is Ex. PW-4/C bearing signature of this witness at Point-A.
9. PW-5 HC (now ASI) Karambir deposed that on 20.08.2020 he was posted as Head Constable at SIU-II, Crime Branch, Nand Nagri, Delhi.
This witness deposed on the same lines as deposed by PW-2 HC Nitin and PW-3 HC Vivek on all other aspects.
It is further stated by him that SI Deepak Pandey signaled HC Vivek to bring their car at the spot, who subsequently brought the car.
It is stated by him that IO SI Deepak Pandey informed both the accused persons about their legal rights that if they wish they can take the search of members of raiding party as well as their vehicle prior to their search. They were further apprised that if they wish they can be searched in presence of DLSH010071612020 Page 24 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act Gazetted Officer or the Magistrate and that they can be called at the spot or that both the accused persons can be taken to the nearest Gazetted Officer or Magistrate for their search. SI Deepak Pandey had also told them the meaning of Gazetted Officer and Magistrate in simple language. Thereafter, IO SI Deepak Pandey prepared two sets of notice U/s 50 NDPS Act with the help of laptop and printer. Then he served notice U/s 50 NDPS Act to each of the accused, same are already exhibited as Ex. PW-1/A and Ex. PW-1/B respectively bearing signature of this witness at Point-D. Both the accused persons told that they are illiterate and that they can only sign. Both of them denied to get their search in presence of Gazetted Officer or the Magistrate and that they do not want to take search of raiding team members as well as their vehicle. At the dictation of both the accused persons, SI Deepak Pandey noted their reply from Points X to X1 on notice U/s 50 NDPS Act. Same was attested by SI Deepak Pandey at Points-B. This witness also signed below their reply at Point-E, respectively. They had signed on their denial in the notice U/s 50 NDPS Act at Point-Z, respectively.
It is stated by him that after arrival of ACP at around 1:40 am, he had introduced himself to both accused persons and directed SI Deepak Pandey to take their search. First of all SI Deepak Pandey took the search of accused Afaaq, he found a black polythene in his hand wrapped up with rubber from the top. SI Deepak Pandey opened the same, he found a transparent polythene having some substance and the mouth of said polythene was tied with the rubber. After opening the said transparent polythene SI Deepak Pandey found one muddy colour substance kept in it. SI Deepak Pandey tested the said DLSH010071612020 Page 25 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act substance on field testing kit, which affirmed that the recovered contraband was heroin.
It is further stated by him that SI Deepak Pandey prepared rukka/ tehrir and handed over to HC Vivek. SI Deepak Pandey also handed over copy of seizure memo of the case property, pullandas having Mark S1, S2; pullanda of remaining contraband; nil recovery memo and FSL form with the direction to hand over the rukka to the DO and the remaining things to SHO, Crime Branch, Pushp Vihar.
During his cross-examination on behalf of accused persons, it is stated by him that in case there is no heavy traffic on the road, it takes about half an hour in reaching the place of apprehension of accused persons from their office. It is stated by him that they went for raid in a private car. He could not tell who was the owner of the car. It is stated by him that HC Vivek was driving the car. It is stated by him that SI Deepak Pandey checked the polythene carried by accused Afaaq, but he could not tell after how much time after his apprehension, the same was checked. It is stated by him that it was not a long time gap, but he could not tell the exact time now. He could not tell after how many minutes of smelling the contraband by SI Deepak Pandey, the notice U/s 50 NDPS Act was served upon them.
10. PW-6 HC Gaurav deposed that on 02.09.2020, he was posted at SIU-II, Crime Branch, Nand Nagri as Constable. On that day MHC(M) handed over one sealed plastic container Mark S1, which was sealed with the seals of MK and SS and one sealed plastic container Mark A1 which was sealed with the DLSH010071612020 Page 26 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act seal of "office of sub divisional magistrate Seemapuri", FSL forms, copy of seizure memo, copy of FIR, copy of sampling order of SEM, Nand Nagri and sample seals to this witness vide RC No. 271/20/21 to be deposited at FSL Rohini. This witness deposited the parcels at FSL, Rohini, Delhi, came back to Police Station and deposited the acknowledgment of FSL with MHC(M). The copy of RC No. 271/20/21 is Ex. PW-6/A (OSR) which bears signature of this witness at Point-A. Acknowledgment of FSL is Ex. PW-6/B (OSR) which bears signature of this witness at Point-A. It is stated by him that till the time the case property was in his possession, it has not been tampered with.
11. PW-7 retired SI Ishwar Prakash deposed that on 24.08.2020 he was posted as ASI, Photo Sectionm, Kamla Market. On that day on the directions of Incharge Photo Section, this witness reached the office of Executive Magistrate, Seemapuri, SDM Office. This witness carried digital camera with him. SI Prakash, one Constable and both accused persons met this witness there. Executive Magistrate conducted the sampling proceedings which were photographed by this witness. This witness took 28 photographs of the sampling proceedings through official digital camera. This witness came back to his office where he took two sets of print outs of the photographs and prepared two CDs of the photographs and prepared certificate U/s 65B of IEA. The same were handed over to the IO. The photographs are Ex. PW-7/A (Colly). The CD containing photographs are Ex. PW-7/B. His certificate U/s 65B of IEA is Ex. PW-7/C which bears his signature at Point-A. DLSH010071612020 Page 27 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act
12. PW-8 HC Manish deposed that on 24.08.2020 he was posted as maalkhana munshi at P.S. Crime Branch, Pushp Vihar. On that day MHC(M) handed over one parcel Mark-A sealed with the seals of MK and SS for the purpose of sampling at SDM Office, Nand Nagri. This witness produced the said parcel before Executive Magistrate Sh. Atul Ramchiary. IO SI Prakash alongwith both the accused persons were also present there. Executive Magistrate conducted the sampling proceedings. The sampling proceedings were also photographed. Two samples of 10 grams each were drawn from the contraband contained in parcel Mark A. The samples were kept in two separate plastic containers which were marked as A1 and A2. Executive Magistrate also sealed all the three parcels. Thereafter, this witness came to P.S. Crime Branch and handed over the sealed parcels to MHC(M). In the photographs already Ex. PW-7/A (Colly), this witness is visible wearing green and yellow check shirt, jeans pant and white shoes.
13. PW-9 Dr. Kavita Goyal, Assistant Director, Chemistry, FSL, Rohini, Delhi deposed that he is working at FSL, Rohini since 1999. On 02.09.2020, he was posted as Assistant Director (Chemistry) at FSL, Rohini. On that day one sealed parcel Mark A1 sealed with the seal of OFFICE OF THE SUB DIVISIONAL MAGISTRATE and one sealed parcel Mark S1 sealed with the seals of MK and SS in FIR No. 121/2020 dated 21.08.2020 U/s 21 NDPS Act, P.S. Crime Branch alongwith specimen seals, forwarding letter, copy of FIR, copy of seizure memo etc. were received in their office from SHO, P.S. DLSH010071612020 Page 28 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act Crime Branch vide letter reference no. 878/SHO/Crime Branch dated 02.09.2020. Same were marked to this witness for chemical examination. The seals were intact and were tallying with specimen seals.
On opening the parcel Mark A1, it was found containing reddish brown colour damp material, weight approx. 10.00 gms and it was marked as Ex. A1.
On opening the parcel Mark S1, it was found containing reddish brown colour damp material, weight approx. 10.8 gms and it was marked as Ex. S1.
After chemical, TLC and GC-MS examination of the substance i.e. Ex. A1 and Ex. S1, the same were found to contain diacetylmorphin, acetaminophen, caffeine, dextromethorphan, morphine, acetylcodeine, 6- monoacetylmorphine and trimethoprim. The Ex. A1 and Ex. S1 were found to contain diacetylmorphin (5.5%) and (6.4%) respectively. After the examination the remnants of the exhibits were kept in two separate parcels which were sealed with the seal of K.G. FSL DELHI.
This witness prepared the detailed report bearing no. SFSL DLH/6310/CHEM/1784/20 dated 23.11.2020 which is Ex. PW-9/A (running into two pages) bearing his signature at Points A and B. She submitted her report in a sealed envelope alongwith the sealed parcels for onward transmissions to the forwarding agency.
14. PW-10 retired ASI Jag Narayan deposed that on 21.08.2020 he was posted as MHC(M) at P.S. Crime Branch. On that day at about 5:45 am SHO/ DLSH010071612020 Page 29 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act Inspector Satender Sangwan called this witness in his office and handed over to this witness three sealed parcels Mark A, S1 and S2, and carbon copy of seizure memo on which the SHO has already put the FIR Number and his signatures. The pullandas were already sealed with the seal of MK and SS. This witness made entry in register no.19 at serial no.3748 and same is Ex. PW-10/A (OSR). Inspector Satender Sangwan also countersigned the entry in register no.19 at Point-A. On the same day, SI Prakash deposited personal search articles of the accused persons in the maalkhana. This witness made entry vide serial no.3749 in this regard in register no.19. Copy of entry vide serial no.3749 is Ex. PW-10/B (OSR).
It is stated by him that on 24.08.2020, on the directions of SHO, he handed over one sealed parcel Mark-A to Ct. Manish for the purpose of sampling before Executive Magistrate U/s 52A NDPS Act. After the sampling proceedings, Ct. Manish deposited three sealed parcels Mark A, A1 and A2 at the maalkhana sealed with the seal of SDM SEEMAPURI alongwith FSL form.
It is stated by him that on 02.09.2020, on the directions of SHO, he handed over two sealed parcels Mark A1 sealed with the seal of SDM SEEMAPURI and S1 sealed with the seals of MK and SS, FSL form and sample seals to Ct. Gaurav to be deposited at FSL vide RC No. 271/21/20. After depositing the same, Ct. Gaurav came back and handed over acknowledgment of FSL to this witness. The copy of RC No. 271/21/20 is already Ex. PW-6/A which bears his signature at Point-B and acknowledgment of FSL is already Ex. PW-6/B. DLSH010071612020 Page 30 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act It is stated by him that till the time the case property was in his possession, it has not been tampered with.
15. PW-11 SI Prakash deposed that on 21.08.2020 he was posted as SI at ER-II, Crime Branch. On that day, the investigation of the present case was marked to him. He went to the spot i.e. on the road heading from SDM office roundabout towards GTB Hospital, opposite Bus Stand 212, Nand Nagri, where SI Deepak Pandey, HC Karamvir and Ct. Nitin met this witness alongwith both the accused persons.
SI Deepak Pandey handed over the documents prepared by him to this witness. At about 7:30 am, HC Vivek came to the spot and handed over copy of FIR and original rukka to this witness. This witness entered the FIR number on the documents prepared by SI Deepak Pandey. This witness prepared site plan at the instance of SI Deepak Pandey which is already Ex. PW-1/F which bears his signature at Point-B. Thereafter, this witness arrested accused persons namely Guddu Khan and Afaaq Khan vide arrest memos already Ex. PW-2/A and Ex. PW-2/B and personally searched them vide personal search memos already Ex. PW-2/C and Ex. PW-2/D bearing his signature at Point-D, respectively. During personal search of accused Guddu Khan, one original notice U/s 50 NDPS Act, nil recovery memo and some cash were recovered. From the personal search of accused Afaaq, one original notice U/s 50 NDPS Act, copy of seizure memo and some cash were recovered.
It is stated by him that he brought both the accused persons to their office where he recorded their disclosure statements which are already Ex. PW-
DLSH010071612020 Page 31 of 61 SC No. 217/2020 FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act 2/E and Ex. PW-2/F bearing his signature at Point-X, respectively.
It is stated by him that both the accused persons were produced before the Court and he obtained their three days PC remand. During the PC remand, he tried to search for the source of contraband, but in vain.
It is stated by him that on 22.08.2020 he submitted his report U/s 57 NDPS Act to be forwarded to ACP. On 22.08.2020 itself, he moved an application for conducting the proceedings U/s 52A NDPS Act before SDM Seemapuri and the date for conducting the proceedings was fixed as 24.08.2020. On 24.08.2020, he produced both the accused persons before Sh. Atul Ram Chiari, Executive Magistrate, Seemapuri. Ct. Manish brought the case property i.e. sealed parcel Mark-A. ASI Ishwar Prakash has taken the photographs of the proceedings. On the directions of Executive Magistrate, two samples of 10 grams each were taken from the contraband in the parcel Mark-A which were marked as A1 and A2. All the three parcels were sealed with the seal of OFFICE OF THE SUB DIVISIONAL MAGISTRATE SEEMAPURI. This witness handed over the sealed parcels alongwith sample seal and FSL form to Ct. Manish to be deposited in the maalkhana. This witness obtained the copy of proceedings conducted by Executive Magistrate.
During investigation, he sent the samples Mark S1 and A1 to FSL for analysis on 02.09.2020. He obtained the photographs and CD of sampling proceedings. After completion of investigation, he submitted the charge-sheet for trial. After obtaining the result of FSL, he submitted the same before the Court through supplementary charge-sheet.
This witness correctly identified both the accused persons in the DLSH010071612020 Page 32 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act Court.
Copy of his report U/s 57 NDPS Act dated 22.08.2020 is Mark- 11A which bears his signature at Point-A. During his cross-examination on behalf of accused persons, he failed to remember, if he made any DD entry in the office while leaving for the spot. It is stated by him that he did not ask SHO, P.S. Crime Branch to move application for sampling of contraband. It is voluntarily stated by him that he himself moved the application. It is stated by him that he is not aware, if SHO has prepared any inventory of the recovered contraband. It is stated by him that prior to the sampling he has not prepared any separate inventory and therefore he has not placed the same before Executive Magistrate, though it is stated by him that he has shown the seizure memo to Executive Magistrate.
16. PW-12 ASI Satish Kumar deposed that he is posted as Reader to ACP ER-II, Crime Branch, Krishna Nagar, Delhi. He has brought original diary register of the year 2020 of ACP office. As per said diary register there is no entry of receipt of report U/s 57 NDPS Act dated 22.08.2020 sent by SI Prakash in the present case. The copy of the entries of the diary register from 21.08.2020 to 24.08.2020 are Ex. PW-12/A.
17. PW-13 Inspector (now ACP) Satender Sangwan deposed that on 21.08.2020, he was posted at P.S. Crime Branch as SHO. At about 5:15 am, HC Vivek came to office of this witness and handed over to him three sealed parcels sealed with the seal of 'MK' and having Mark A, S1 and S2 alongwith FSL DLSH010071612020 Page 33 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act form having seal of MK and carbon copy of seizure memo. This witness affixed his seal on the said three parcels with his seal of SS and affixed his sample seal SS on FSL form. After confirming the FIR Number from the Duty Officer, this witness wrote the same on all the parcels, FSL form and copy of seizure memo. This witness also signed all the three parcels, FSL form and copy of seizure memo. He then called the MHC(M) CP alongwith register no.19 in his office and MHC(M) has made entry of all the details in the register no.19 and this witness handed over the sealed parcels and all documents to MHC(M) CP. This witness also signed at Point-A against the relevant entry in register no.19 which is already Ex. PW-10/A. In this regard, this witness lodged a GD No. 6A at about 6:00 am dated 21.08.2020 and same is Ex. PW-13/A which bears his signatures at Point-A.
18. PW-14 retired ACP Udai Bir Singh deposed that on 20.08.2020, he was posted as ACP, SIU-II/ Crime Branch, Nand Nagri, Delhi. On that day, Inspector Vinod Ahlawat came to office of this witness at about 11:40 pm and informed him about one secret information. Inspector Vinod Ahlawat produced the secret informer before this witness. This witness verified the information and asked Inspector Vinod Ahlawat to conduct further proceedings. SI Deepak Pandey who was told by the Inspector Vinod Ahlawat, lodged DD entry regarding the information.
It is stated by him that on 21.08.2020, at about 1:10 am, SI Deepak Pandey informed him through telephone about apprehending of two persons and requested him to reach the spot. At about 1:40 am, this witness reached the spot DLSH010071612020 Page 34 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act i.e. near Bus Stand 212, on the road leading towards GTB Hospital. SI Deepak Pandey had already served notices U/s 50 NDPS Act to both the suspects. This witness asked SI Deepak Pandey to take formal search of the suspects. SI Deepak Pandey had told this witness that they had apprehended them (suspects) while they were exchanging the suspicious substance. SI Deepak Pandey conducted search of accused Afaaq Khan from whose possession/ hand one polythene of black colour was recovered which was opened by SI Deepak Pandey. From the black colour polythene, polythene of transparent colour was recovered which was containing some powder form substance. SI Deepak Pandey checked the substance through field testing kit and it was found as heroin. The weight of the recovered drugs was found to be 300 grams.
It is stated by him that SI Deepak Pandey also conducted the search of other suspect namely Guddu Khan from whose possession nothing was recovered. This witness asked SI Deepak Pandey for sampling of the recovered substance/ drugs. Thereafter, this witness proceeded from the spot at about 2:50 am.
It is stated by him that on the next morning, DD entry was put up before him by his Reader. The said DD is not placed on record.
On seeing the report U/s 57 NDPS Act regarding arrest of both the accused persons, prepared by SI Prakash dated 22.08.2020, this witness replies that the said report already Mark-11A, does not bear his signature.
Accused persons are duly identified by this witness in the Court through VC, however their identity is not disputed by their counsel.
During his cross-examination on behalf of accused persons, it is DLSH010071612020 Page 35 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act stated by him that he had reached the spot in his official vehicle, however he could not produce any log book entry with regard to the same. It is stated by him that the parcels of contraband were not sealed in his presence.
19. During trial, accused persons admitted the proceedings U/s 52A NDPS Act conducted by Sh. Atul Ramchiary, Executive Magistrate, Seemapuri, DC Office Complex, Nand Nagri, Delhi (Ex. AD-1) U/s 330 BNSS/ 294 Cr.P.C.
20. No other witness was examined by the prosecution. Thereafter, P.E. was closed vide order dated 17.10.2025.
STATEMENTS OF ACCUSED PERSONS
21. Statement of accused Guddu Khan was recorded under Section 313 Cr.P.C. wherein he pleaded his innocence and denied entire prosecution's case. It is stated by him that the contraband was not recovered from his possession. It is stated by him that being the police officials, they have deposed against him in order to prove their false case. It is stated by him that the police officials had illegally entered his house and apprehended him at around 5:00-6:00 pm on 20.08.2020 and thereafter they did not even respond to the people gathered around his house at that time and further they demanded money from him which was not fulfilled and later on, he came to know about the registration of the present FIR.
22. Statement of accused Afaaq Khan was recorded under Section 313 DLSH010071612020 Page 36 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act Cr.P.C. wherein he pleaded his innocence and denied entire prosecution's case. It is stated by him that no contraband was recovered from his possession. It is stated by him that being the police officials, they have deposed against him in order to prove their false case. It is stated by him that the police officials had illegally entered his house and apprehended him at around 5:00-6:00 pm on 20.08.2020 and thereafter they did not even respond to the people gathered around his house at that time and further they demanded money from him which was not fulfilled and later on, he came to know about the registration of the present FIR.
23. Accused persons chose to lead defence evidence.
DEFENCE EVIDENCE
24. In order to substantiate their defence, accused persons have examined Sh. Sabir Ali, Sh. Meer Mohammad and Sh. Ishrat Ali as defence witnesses.
25. DW-1 Sh. Sabir Ali deposed that he run the business of jeans washing. On 20.08.2020 at around 5:00 to 6:00 pm, in the evening when he was at his house, he heard hues and shouting, therefore he came out of his room and saw that 5-7 people were dragging Afaaq and Guddu Khan and took both of them away. Afaaq and Guddu Khan used to reside at Ground Floor of E-2/338, near Gagan Cinema, Nand Nagri, Seemapuri, Mandoli, Saboli, Delhi as tenants of this witness. Later on, they came to know that the present case was registered DLSH010071612020 Page 37 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act against Afaaq and Guddu Khan.
During his cross-examination by Ld. Addl. PP for the State, he could not show any document qua his ownership of E-2/338, near Gagan Cinema, Nand Nagri, Seemapuri, Mandoli, Saboli, Delhi. It is stated by him that he has given the premises on rent to the mother and father of accused persons. It is stated by him that no rent agreement was executed between him and parents of accused persons. It is stated by him that he is running a factory of washing jeans pants at Rajender Nagar, Sahibabad. It is stated by him that the factory opens at 9:00 am and closes at 9:00 pm. It is stated by him that he used to close the factory at 9:00 pm daily, however it was holiday of the factory on Sunday.
26. DW-2 Sh. Meer Mohammad deposed that he is a taxi driver. On 20.08.2020 at around 5:00 to 6:00 pm, in the evening when he was at his house, he heard hues and shouting, therefore he came out of his house and saw that 5-7 people were dragging Afaaq and Guddu Khan and took both of them away. Later on, they came to know that the present case was registered against Afaaq and Guddu Khan.
During his cross-examination by Ld. Addl. PP for the State, it is stated by him that he is having cordial relations with the family of accused persons. It is admitted by him that they used to help each other in case of need.
27. DW-3 Sh. Ishrat Ali deposed that he is a TSR driver. On 20.08.2020 at around 6:00 pm, in the evening when he was present on the road outside the gali, he saw 3-4 persons were taking accused persons namely Guddu DLSH010071612020 Page 38 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act Khhan and Afaaq Khan alongwith them. Later on, they came to know that the present case was registered against Afaaq Khan and Guddu Khan.
During his cross-examination by Ld. Addl. PP for the State, he could not tell as to who were the persons taking the accused alongwith them. It is stated by him that the said persons were in plain clothes. It is voluntarily stated by him that they appeared to be police officials from their physique.
28. No other witness was examined by accused persons in their defence. Thereafter, D.E. was closed vide order dated 11.12.2025.
FINAL ARGUMENTS
29. This Court has heard the Ld. Additional Public Prosecutor and the Ld. Counsel for the accused persons and perused the record carefully.
30. It is contended by Ld. Addl. PP for the State that all the procedures as per NDPS Act have been complied with in the present matter at the time of recovery and thereafter. It is contended that a black polythene containing 300 gms heroin i.e. commercial quantity, was recovered from accused Afaaq Khan which was handed over to him by accused Guddu Khan. There is nothing on record to suggest that police officials had any enmity with the accused persons. Thus, the offence U/s 21(c) NDPS Act is proved beyond reasonable doubt against the accused persons.
31. Per contra, it is contended on behalf of the accused persons that DLSH010071612020 Page 39 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act accused persons have been falsely implicated in the present case. It is contended that no CCTV footage qua arrest of the accused persons or their movement towards the spot of their arrest has been filed on record. It is contended that there is no videography or photography of the recovery proceedings. No public person joined in the investigation as no recovery was effected from the alleged place and time.
Legal Requirement to prove the Charges :-
32. Section 21 NDPS Act reads as under:
"21. Punishment for contravention in relation to manufactured drugs and preparations.
Whoever, in contravention of any provision of this Act or any rule or order made or condition of license granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,--
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."
(emphasis supplied)
33. As far as contravention of the provisions is concerned, Section 8 of NDPS Act completely prohibits the possession of narcotic drug or psychotropic substances, except for medical or scientific purposes, that too in the manner as DLSH010071612020 Page 40 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act prescribed by the Act. This section reads as under :
"No person shall--
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:
Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes."
(emphasis supplied)
34. As per the Section, possession of all narcotic drugs is prohibited by Section 8 of NDPS Act.
35. The term "narcotic drugs" is defined in Section 2(xiv) as under :-
(xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs;
36. As per the definition, 'narcotic drug' includes 'manufactured drug', therefore, the possession of 'manufactured drug' is prohibited by Section 8 of NDPS Act.
DLSH010071612020 Page 41 of 61 SC No. 217/2020 FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act
37. The term "manufactured drug" is defined in Section 2(ix) of NDPS Act, as under :-
(xi) "manufactured drug" means--
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug, but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug;"
(emphasis supplied)
38. "Opium Derivatives" besides other things also means heroin. It is defined in Section 2(xvi) of NDPS Act as under:
(xvi) "opium derivative" means--
(a) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials;
(b) prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked;
(c) phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts;
(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; and
(e) all preparations containing more than 0.2 per cent. of morphine or containing any diacetylmorphine"
(emphasis supplied)
39. The prosecution would also be required to prove that the quantity DLSH010071612020 Page 42 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act of the contraband recovered was of small, intermediate or commercial quantity. The terms "small quantity" and "commercial quantity" are defined in Section 2(xxiiia) & 2 (viia), as under :
"(xxiiia) "small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette;
(viia) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette."
40. The notification specifying small quantity & commercial quantity vide SO1055(E) dated 19.10.2001 mentions the small quantity and commercial quantity for various Narcotic Drugs & Psychotropic Substances, including 'heroin'. As per entry at serial no.56 in the said notification, the small quantity for Heroin is 5 gms and commercial quantity is 250 gms.
41. In order to prove the charge U/s 21(c) NDPS Act, the prosecution is required to prove the following facts:
(1) That accused Afaaq Khan was in possession of contraband which was handed over to him by accused Guddu Khan.
(2) That the possession was in contravention of the provision of the Act or any rule on order made or condition of license granted thereunder.
(3) That the contraband was opium derivative/ heroin. (4) That the quantity of the contraband was commercial for Section 21(c) NDPS Act.
42. Besides proving the aforesaid facts, the prosecution is also required DLSH010071612020 Page 43 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act to prove that the investigating agency carried out the investigation in compliance with the provisions of NDPS Act. The investigating agency must adhere strictly to the legal procedure established during the search, ensuring transparency and fairness in the investigation. By adhering to this procedure, the agency demonstrates its commitment to protecting personal liberty, a fundamental right of citizens. This ensures that the search was conducted in a manner that upholds the principles of the judicial system. The credibility of the evidence presented by the prosecution is enhanced when the investigating agency follows the statute scrupulously. The failure to adhere to the procedure raises a doubt in the mind of the court regarding the manner in which the investigation is carried out, which obviously favors the accused.
43. In State of Punjab Vs. Balbir Singh, 1994 INSC 96, Hon'ble Apex Court considered the scheme of the Act as under :-
"4. The NDPS Act was enacted in the year 1985 with a view to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. Sections 1 to 3 in Chapter I deal with definitions and connected matters. The provisions in Chapter II deal with the powers of the Central Government to take measures for preventing and combating abuse of and illicit traffic in narcotic drugs and to appoint authorities and officers to exercise the powers under the Act. The provisions in Chapter III deal with prohibition, control and regulation of cultivation of coca plant, opium poppy etc. and to regulate the possession, transport, purchase and consumption of poppy straw etc. Chapter IV deals with various offences and penalties for contravention in relation to opium poppy, coca plant, narcotic drugs and psychotropic substances and prescribes deterrent sentences. The provisions of Chapter V deals with the procedure regarding the entry, arrest, search and seizure. Chapter VA DLSH010071612020 Page 44 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.FIR No. 121/2020
(Crime Branch) U/s 21(c) NDPS Act deals with forfeiture of property derived from or used in illicit traffic of such drugs and substances. The provisions of Chapter VI deals with miscellaneous matters. We are mainly concerned with Sections 41, 42, 43, 44, 49, 50, 51, 52 and
57. Under Section 41 certain classes of magistrates are competent to issue warrants for the arrest of any person whom they have reason to believe to have committed any offence punishable under Chapter IV or for search of any building, conveyance or place in which they have reason to believe that any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed, is kept or concealed. Section 42 empowers certain officers to enter, search, seize and arrest without warrant or authorisation. Such officer should be superior in rank to a peon, sepoy or constable of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or an officer of similar superior rank of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government. Such officer, if he has reason to believe from personal knowledge or information taken down in writing, that any offence punishable under Chapter IV has been committed, he may enter into and search in the manner prescribed thereunder between sunrise and sunset. He can detain and search any person if he thinks proper and if he has reason to believe such person to have committed an offence punishable under Chapter IV. Under the proviso, such officer may also enter and search a building or conveyance at any time between sunset and sunrise also provided he has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for concealment of the evidence or facility for the escape of an offender. But before doing so, he must record the grounds of his belief and send the same to his immediate official superior. Section 43 empowers such officer as mentioned in Section 42 to seize in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe that an offence punishable under Chapter IV has been committed and shall also confiscate any animal or conveyance alongwith such substance. Such officer can also detain and search any person whom he has reason to believe to have committed such offence and can arrest him and any other person in his company. Section 44 merely lays down that provisions of Sections 41 to 43 shall also apply in relation to offences regarding coca plant, opium poppy or cannabis plant. Under Section 49, any such officer authorised under Section 42, if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance, can rummage and search the conveyance or part thereof, examine and search any goods in the conveyance or on the animal and he can stop the animal or conveyance by using all lawful means and where such means fail, the animal or the conveyance may be fired upon. Then comes Section 50. ...... This provision obviously is introduced to avoid any harm to the innocent persons DLSH010071612020 Page 45 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.FIR No. 121/2020
(Crime Branch) U/s 21(c) NDPS Act and to avoid raising of allegation of planting or fabrication by the prosecuting authorities. It lays down that if the person to be searched so requires, the officer who is about to search him under the provisions of Sections 41 to 43, shall take such person without any unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest magistrate........ Section 51 is also important for our purpose. ....... This is a general provision under which the provisions of Code of Criminal Procedure, ("Cr. PC" for short) are made applicable to warrants, searches, arrests and seizures under the Act. Section 52 lays down that any officer arresting a person under Sections 41 to 44 shall inform the arrested person all the grounds for such arrest and the person arrested and the articles seized should be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued or to the officer-in-charge of the nearest police station, as the case may be and such Magistrate or the officer to whom the articles seized or the person arrested are forwarded may take such measures necessary for disposal of the person and the articles. This Section thus provides some of the safeguards within the parameters of Article 22(1) of the Constitution of India. In addition to this, Section 57 further requires that whenever any person makes arrest or seizure under the Act, he shall within forty-eight hours after such arrest or seizure make a report of the particulars of arrest or seizure to his immediate official superior. This Section provides for one of the valuable safeguards and tries to check any belated fabrication of evidence after arrest or seizure."
44. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act has to be scrupulously followed for the Court to raise such presumption. For raising the presumption U/s 54 of the Act it must be first established that recovery was made from the accused and the procedure provided under the NDPS Act followed thoroughly without fail. It is further settled law that for attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to the accused to prove his innocence. This burden on the prosecution is a heavy burden. To decide whether the burden has been discharged or not by the prosecution, it is relevant to peruse the record and evidence and consider the DLSH010071612020 Page 46 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act submissions made by the parties.
45. Besides proving the aforesaid facts, the prosecution is also required to prove that the investigating agency carried out the investigation in compliance with the provisions of NDPS Act. The investigating agency must adhere strictly to the legal procedure established during the search, ensuring transparency and fairness in the investigation. By adhering to this procedure, the agency demonstrates its commitment to protecting personal liberty, a fundamental right of citizens. This ensures that the search was conducted in a manner that upholds the principles of the judicial system. The credibility of the evidence presented by the prosecution is enhanced when the investigating agency follows the statute scrupulously as held by Hon'ble Bombay High Court in the case titled as Koyappakalathil Ahamed Koya vs. A.S. Menon and Ors. (03.07.2002 - BOMHC) : MANU/MH/1838/2002 :-
"In view of the principle that Ceaser's wife must be above-board, the investigating agency has to be consistent with the procedure laid down by law while conducting the search and it has to be above-board in following the procedure by investigating into the crime and if that is done it would assure the judicial mind that by giving importance to the personal liberty a fundamental right of (he citizen, the search was conducted. If that is done, then there would be creditworthiness to such evidence which has been adduced by the prosecution. The investigating agency must follow the procedure as envisaged by the statute scrupulously and failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that laxity on the part of the investigating authority is curbed."
Thus, the failure to adhere to the procedure raises a doubt in the mind of the Court regarding the manner in which the investigation is carried out, which obviously favors the accused.
DLSH010071612020 Page 47 of 61 SC No. 217/2020 FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act
46. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act has to be scrupulously followed for the Court to raise such presumption. For raising the presumption U/s 54 of the Act it must be first established that recovery was made from the accused and the procedure provided under the NDPS Act followed thoroughly without fail. It is further settled law that for attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to accused to prove his innocence. This burden on the prosecution is a heavy burden. To decide whether the burden has been discharged or not by the prosecution, it is relevant to peruse the record and evidence and consider the submissions made by the parties.
ANALYSIS OF EVIDENCE
47. The Court will now proceed to examine and discuss the various aspects of the case and the relevant pieces of evidence under distinct headings as follows:-
Discussion on the point of compliance of Section 42 or Section 43 of NDPS Act
48. Since the present case is a case of recovery from public place, hence, the question of compliance of Section 42 NDPS Act does not arise in the facts of this case, rather Section 43 NDPS Act would come into play. However, DLSH010071612020 Page 48 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act proceedings qua recording of secret information are relevant in the present matter as police officials left their office only on the basis of that secret information.
49. Section 43 NDPS Act reads as follows :-
43. Power of seizure and arrest in public place.- Any officer of any of the depart-
ments mentioned in section 42 may -
(a) seize in any public place or in transit, any narcotic drug or psychotropic sub- stance or controlled substance in respect of which he has reason to believe an of- fence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish ev- idence of the commission of an offence punishable under this Act or any docu- ment or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he has reason to believe to have commit- ted an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such pos- session appears to him to be unlawful, arrest him and any other person in his com- pany.
Explanation. - For the purposes of this section, the expression "public place" in- cludes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
50. In the case in hand, PW-1 SI Deepak Pandey received secret information which was conveyed to Inspector Vinod Ahlawat who informed PW-14 ACP Udai Bir Singh. Thereafter, this secret information was recorded on CCTNS vide DD No. 14A recorded at 11:48 pm on 20.08.2020. Thereafter, vide GD No. 1A dated 21.08.2020 recorded at 12:06 am (in the night) the raiding team left the Police Station. These DD & GD entries though available DLSH010071612020 Page 49 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act on record are not exhibited by any witness. Neither the DO who recorded these entries, nor Inspector Vinod Ahlawat who attested/ put signatures on these entries have been examined in the Court as prosecution witnesses.
51. It is deposed by all the members of raiding team that they took position near Bus Stand No. 212 i.e. a public road and at around 1:00 am accused Guddu Khan came on the spot on foot. He was pointed out by secret informer. After sometime one more person i.e. accused Afaaq Khan also came at the spot, accused Guddu Khan handed over a polythene to accused Afaaq Khan, on that both of them were apprehended by the raiding team and from the hand of accused Afaaq Khan polythene containing contraband was recovered.
52. In view of the above-stated circumstances, it can be held that provisions of Section 43 NDPS Act have been complied with in the present case, however the DD and GD entries whereby the raiding team reached the spot, have not been duly proved on record.
Discussion on the point of compliance of Section 50 of NDPS Act
53. Section 50 NDPS Act is as under :-
"Conditions under which search of persons shall be conducted.
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).DLSH010071612020 Page 50 of 61 SC No. 217/2020 FIR No. 121/2020
(Crime Branch) U/s 21(c) NDPS Act (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."
(emphasis supplied)
54. As per prosecution case, after apprehension of the accused persons, they were served with mandatory notices under Section 50 of the NDPS Act (carbon copies of the notices are Ex. PW-1/A and Ex. PW-1/B, the version of the accused persons were recorded at Points X to X1 and original notices recovered in the personal search of the accused persons are Ex. PW-2/G and Ex. PW-2/H). Notices were read over and explained in simple language to accused persons who stated that they do not want to be searched in presence of Gazetted Officer or Magistrate and do not want to take search of the police party. The said reply of accused persons was noted down by SI Deepak Pandey on dictation of the accused persons as accused persons were illiterate. Despite refusal of the accused persons to be searched in presence of Gazetted Officer or Magistrate, as abundant caution, PW-14 ACP Udai Bir Singh was called at the spot. On reaching the spot PW-14 ACP Udai Bir Singh, who is a Gazetted Officer, gave his introduction to the accused persons. Thereafter, on the instructions of PW-14 ACP Udai Bir Singh, the search of accused persons were carried out by PW-1 SI DLSH010071612020 Page 51 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act Deepak Pandey. In the search of accused Afaaq Khan contraband contained in a polythene was recovered from his hand.
Similarly, deposed by PW-14 ACP Udai Bir Singh, PW-1 SI Deepak Pandey and other members of the raiding party. However, there are a few contradictions in the testimonies of the prosecution witnesses on this point which are as follows :-
(a) PW-1 SI Deepak Pandey in his cross-examination failed to remember if he had personally called the ACP on his mobile number to reach the spot, he also shown his inability to produce call record qua same at the stage of evidence.
(b) PW-1 SI Deepak Pandey stated in his cross-examination that while ACP was on the way, again said, when ACP reached the spot, I (Deepak Pandey) checked the contraband recovered with the help of field testing kit. Thus, in the same breathe once SI Deepak Pandey said that while ACP was on the way, he did the above-stated proceedings, but in the same breathe he changed the statement and stated that he did the proceedings in the presence of ACP.
However, it is stated by PW-5 HC Karambir that SI Deepak Pandey checked the polythene carried by accused Afaaq Khan after his apprehension and there was not a long time gap in the said proceedings. It is also stated by him that he could not tell after how many minutes of smelling the contraband by SI Deepak Pandey, the notice U/s 50 NDPS Act was served upon them, however from this DLSH010071612020 Page 52 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act line it appears that SI Deepak Pandey checked and smell the contraband prior to giving notice U/s 50 NDPS Act to the accused persons.
(c) There is no documentary evidence on record qua presence of PW- 14 ACP Udai Bir Singh at the spot as no log book entry of his official vehicle has been filed on record to show his presence at the spot.
(d) PW-14 ACP Udai Bir Singh stated that the parcels of contraband were not seized in his presence. However, PW-1 SI Deepak Pandey stated that ACP Udai Bir Singh came at the spot at 1:40 am, he conducted sampling proceedings and thereafter, ACP left at about 2:50 am.
PW-2 HC Nitin and PW-5 HC Karambir also stated that ACP Udai Bir Singh left the spot after sampling and seizure of the case property.
From above-stated facts, certain doubts have arose qua arrival of ACP Udai Bir Singh at the spot. Thus, a doubt arises on the story of the prosecution qua recovery of contraband from the accused Afaaq Khan. Though in the present case, contraband was recovered from a polythene in the hands of accused Afaaq Khan and not in his personal search, thus the provisions of section 50 NDPS Act do not apply to present recovery as it was not made from the person of the accused (reliance placed on the law laid down in State of Punjab Vs. Baldev Singh,(1999) 6 SCC 172 and State of Punjab Vs. Baljinder Singh, 2019 INSC 1145 as well as other various judgments, wherein it is held DLSH010071612020 Page 53 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act that the compliance of Section 50 NDPS Act is not mandatory, if the recovery was effected from a bag pack (pithu bag) carried by the accused and not from the person of the accused).
55. Section 55 of the NDPS Act was duly complied with in the present matter as PW-13 SHO Inspector Satender Sangwan, P.S. Crime Branch has also put his seal on the samples and contraband allegedly recovered, before depositing the same in the maalkhana.
56. Section 57 of the NDPS Act which requires that :-
"Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."
57. In the present matter, alleged recovery of contraband was effectuated by PW-1 SI Deepak Pandey and after recovery of the case property investigation of the present case was marked to PW-11 SI Prakash who arrested the accused persons. Both these police officials have stated that they had prepared reports U/s 57 NDPS Act. However, the report or its copy prepared by SI Deepak Pandey is not on record. The then SHO, P.S. Crime Branch Inspector Satender Sangwan (PW-13) has not stated if any such report was handed over to him by SI Deepak Pandey. Thus, it can be safely held that PW-1 SI Deepak Pandey has not complied with the mandate of Section 57 NDPS Act in the present matter.
DLSH010071612020 Page 54 of 61 SC No. 217/2020 FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act PW-11 SI Prakash has also stated that he prepared the report U/s 57 NDPS Act, he infact marked copy of the report U/s 57 NDPS Act dated 22.08.2020 (Mark-11A). However, the then SHO, P.S. Crime Branch Inspector Satender Sangwan (PW-13) has not stated if any such report was handed over to him by SI Prakash. No original of any such report has been received in the office of ACP as per deposition of PW-14 ACP Udai Bir Singh and PW-12 ASI Satish Kumar, Reader to ACP. Thus, it can be safely held that PW-11 SI Prakash has also not complied with the mandate of Section 57 NDPS Act in the present matter.
Discussion on the point of compliance of Section 52A of NDPS Act
58. Section 52A NDPS Act is as under :-
"52A. Disposal of seized narcotic drugs and psychotropic substances (1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.
(2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, DLSH010071612020 Page 55 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.FIR No. 121/2020
(Crime Branch) U/s 21(c) NDPS Act country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of-
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence."
59. In the present matter, total recovered contraband was 300 gms, out of which PW-1 SI Deepak Pandey took two samples of 10 gms each, sealed & seized the contraband and the samples separately as Mark A, S1 and S2. Thereafter, the contraband seized in pullanda Mark-A was produced before Sh. Atul Ramchiary, Ld. Executive Magistrate, Seemapuri, DC Office Complex, Nand Nagri, Delhi, by PW-11 SI Prakash. Ld. Executive Magistrate further draw two samples from the contraband produced before him which were marked as A1 and A2. Thereafter, police officials sent sample Mark S1 drawn by SI Deepak Pandey and sample Mark A1 drawn before Ld. Executive Magistrate to FSL for examination.
60. In the present case, there are following discrepancies qua sampling and proving the recovered contraband in the Court :-
DLSH010071612020 Page 56 of 61 SC No. 217/2020STATE Vs. GUDDU KHAN & ANR.FIR No. 121/2020
(Crime Branch) U/s 21(c) NDPS Act
(a) Total contraband recovered in the present case was 300 gms. In the application moved before Ld. Executive Magistrate, it was mentioned that total contraband recovered was 300 gms, but only 280 gms were produced before the Ld. Executive Magistrate as the two samples drawn by PW-1 SI Deepak Pandey i.e. Mark S1 and S2 were not produced before him. Thus, the complete recovered contraband was never produced before Ld. Executive Magistrate for the purpose of conducting proceedings U/s 52A NDPS Act.
(b) As per Section 52A NDPS Act, Officer Incharge of the nearest Police Station has to prepare an inventory of the recovered substance. Further, Magistrate conducting proceedings U/s 52A NDPS Act is required to certify the correctness of the inventory so prepared. In the present matter, SHO, P.S. Crime Branch i.e. PW-13 Inspector Satender Sangwan has not prepared any such inventory and no such inventory was certified by the Ld. Executive Magistrate.
(c) In the present matter, total contraband recovered was 300 gms, PW-1 SI Deepak Pandey had drawn two samples of 10 gms each at the spot marked as S1 and S2, remaining contraband was marked as 'A'. Thereafter, two samples of 10 gms each marked as A1 and A2 were drawn before Ld. Executive Magistrate and remaining contraband i.e. 260 gms was kept as exhibit Mark-A. Out of the samples Mark S1 and A1 were sent to FSL, the remnants of the same were returned with the seal of FSL. However, the case property produced before the Court is as under :-DLSH010071612020 Page 57 of 61 SC No. 217/2020
STATE Vs. GUDDU KHAN & ANR.FIR No. 121/2020
(Crime Branch) U/s 21(c) NDPS Act
(i) One plastic jar bearing seal of FSL having remnants of one of the sample sent to FSL.
(ii) One plastic container bearing seals of 'MK' and 'SS' i.e. sample Mark S2 which was drawn at the spot.
Thus, both the exhibits containing remnants received from FSL were not produced before the Court. Even the remaining case property which was kept as Mark A has also not been produced before the Court. The police officials of the present case got totally confused, as first they had drawn the samples at the spot, thereafter remaining contraband was sent to Ld. Executive Magistrate and again samples were drawn. Further, no inventory was prepared or got certified from the Ld. Executive Magistrate. Hence, it can be safely held that in the present matter, Section 52A NDPS Act has not been duly complied with.
Discussion on the point of recovery of contraband
61. In the present matter, the secret informer had informed PW-1 SI Deepak Pandey that accused Guddu Khan would come to deliver contraband to some person. Accordingly, trap was laid and at about 12:50 am in the night accused Guddu Khan appeared at the spot, in some time accused Afaaq Khan came and accused Guddu Khan handed over contraband to accused Afaaq Khan. They both were apprehended and contraband was recovered from the hands of accused Afaaq Khan. However, there are following discrepancies in the story of the prosecution :-
DLSH010071612020 Page 58 of 61 SC No. 217/2020STATE Vs. GUDDU KHAN & ANR.FIR No. 121/2020
(Crime Branch) U/s 21(c) NDPS Act
(i) Both the accused persons namely Guddu Khan and Afaaq Khan are real brothers and both were residing at the same place in Nand Nagri i.e. House No. 338, Block E-2, Nand Nagri, Delhi. When both the accused persons were residing at the same address, then there was no need for them to meet at the middle of the road in the dead of night at 1:00 am to hand over heroin to each other. If accused Guddu Khan was bringing heroin from somewhere, he could have taken the same directly to their accommodation i.e. House No. 338, Block E-2, in order to hand over the same to his brother who was also residing there.
PW-1 SI Deepak Pandey in his cross-examination could not tell from which direction accused Afaaq Khan came at the spot. No CCTV camera could be found by the police officials at the spot of recovery or nearby the spot of recovery, in order to prove movement of the accused persons towards the spot or the factum of recovery.
(ii) There is no investigation conducted by the police officials to trace the route of the accused persons i.e. from where they had came to the spot of incident, since both the accused persons were residing at the same address in Nand Nagri, it has become all the more important to establish from where they both were coming in order to meet at the spot of incident.
(iii) No photography or videography of the search, arrest or recovery proceedings was made, despite the fact that all the members of the raiding team were having smart mobile phones having cameras with them.
DLSH010071612020 Page 59 of 61 SC No. 217/2020 FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act
(iv) Case property in the present case was sealed with the seal of 'MK' used by PW-1 SI Deepak Pandey, however SI Deepak Pandey could not tell to whom this seal belongs, he could not tell what 'MK' stands for. There is no document qua issuance of that seal to SI Deepak Pandey. Thus, how this seal reached SI Deepak Pandey is not clear.
(v) It has already been observed that there are doubts qua presence of PW-14 ACP Udai Bir Singh at the spot as observed above in para no. 54. Even Section 57 NDPS Act has not been complied with in the present matter.
(vi) In the present case, personal search memos of both the accused persons were prepared by PW-11 SI Prakash, however the same are in different handwriting.
(vii) No public person has been joined in the search and seizure or arrest of the accused persons, despite the fact that public persons were available, though had refused to join the investigation. It is to be noted that no name, particulars of the said persons were recorded, no notice was served on them to join investigation.
Non-joining of public witness during the proceedings, raises serious doubt as regards the recovery made from the accused persons. In this regard, reliance can be placed upon judgment titled as Bantu Vs. State Govt. of NCT of Delhi (Bail Appl. No.2287/22 dtd.08.07.2024 of Hon'ble Delhi High Court).
DLSH010071612020 Page 60 of 61 SC No. 217/2020 FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act Thus, in the present matter, it can be safely held that sincere and sufficient efforts were not made by the raiding party to join the independent witness in the investigation. Further, the testimonies of the police officials suffer from material contradictions as stated above, which raises serious doubt qua their version of recovery.
62. Upon reviewing the evidence, particularly the failure of the Investigating Agency of properly subjecting the recovered contraband ( heroin) to sampling proceedings under section 52A NDPS Act and failure of prosecution to produce the entire recovered substance in its intact form as it was recovered and sealed at the spot, the prosecution has failed to prove the foundational facts against the accused persons beyond reasonable doubt. The presumption under sections 35 and 54 of the NDPS Act cannot be raised in this case against the accused persons, as the recovery of contraband could not be established beyond reasonable doubt.
Conclusion
63. In the present matter, the prosecution has failed to prove beyond reasonable doubt DD and GD entries whereby the police party reached the spot, they also failed to prove the factum of recovery of contraband from the accused persons as discussed above. Further, improper compliance of Section 52A NDPS Act, raises a doubt in the mind of the Court as regards the recovery made from the possession of accused persons. In the opinion of the Court, it cannot be said beyond doubt that there is no material contradiction in the story of the DLSH010071612020 Page 61 of 61 SC No. 217/2020 STATE Vs. GUDDU KHAN & ANR.
FIR No. 121/2020(Crime Branch) U/s 21(c) NDPS Act prosecution and it also cannot be said beyond reasonable doubt that the case property after seizure was duly sealed and preserved till the time it was produced before in the Court. Therefore, in the opinion of the Court, the benefit of doubt would go in favour of the accused persons.
64. Accordingly, accused persons namely Guddu Khan and Afaaq Khan are acquitted of the offence punishable under Section 21(c) of the NDPS Act. Accused persons are directed to furnish bail bonds in compliance of Section 481 BNSS (earlier Section 437-A Cr.P.C.), as per rules.
65. File be consigned to Record Room after due compliance.
Announced in the open Court Digitally
GAJENDER signed by
on 31st January, 2026 SINGH GAJENDER
NAGAR SINGH
NAGAR
(Gajender Singh Nagar)
Special Judge (NDPS Act)
District Shahdara
Karkardooma Courts, Delhi